Ontario Labour Relations Board
[1988] OLRB Rep. January 70
0026-85-R United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 800, Applicant v. Northern and Central Gas Corporation Limited, Respondent v. Group of Employees, Objectors
BEFORE: Thomas S. Kuttner, Vice-Chair, and Board Members W. H. Wightman and S. O'Flynn.
DECISION OF THE BOARD; January 18, 1988
By letter dated September 18, 1987, the respondent has requested a reconsideration of the decision of the Board herein dated June 30, 1987. There, the Board, as presently constituted, panel member Wightman dissenting, determined that persons engaged by the respondent as construction inspectors operating out of its offices in North Bay, Ontario and for whom the applicant was seeking bargaining rights, did not exercise managerial functions and hence were not excluded from the status of employee for the purposes of the Act by the provisions of section 1(3)(b) thereof as had been contended both by the respondent and the intervening group of employees. A certificate issued accordingly. The spokesman for the intervening group of employees supports the respondent in its request for reconsideration; the applicant opposes it. No party seeks a hearing prior to determination by the Board of this request.
The request for consideration was premised upon two bases, the one relating to the Board's process in this case, and the other to the substance of its actual decision. In terms of process, the applicant asserts that the 14 month delay from the close of hearings in this matter on May 1, 1986 to the issuance of the Board's decision on June 30, 1987, raised a reasonable expectation that its submissions asserting managerial status on the part of the persons for whom bargaining rights were sought would meet with success and gain the assent of the Board. In the result, this was not the case. As to the substance of the Board's decision, the respondent asserted that the finding of employee status "ignored very compelling evidence which demonstrated that the construction inspectors did exercise managerial functions within the meaning of the Labour Relations Act and Board policy as applied by the Board in other decisions on this issue." In our consideration of this request we deal firstly with this latter ground for reconsideration.
The jurisdiction of the Board to reconsider its own decisions is conferred expressly by the provisions of section 106(1) of the Act which stipulate:
106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
Although the jurisdiction of the Board to reconsider is a plenary one vesting the Board with a fulsome degree of flexibility to respond to exigencies of fact and circumstance which may militate against the continued governance of determinations earlier made, its exercise must be fitted to meet other competing values which inform the process of decision-making by any adjudicative tribunal. Principal among these are those of certainty and finality in decision-making and the resultant reliance on Board decisions which those values engender in persons subject to the Board's process.
Thus, the Board early developed jurisprudence consistently applied from its first articulation to the present, which channels and directs its jurisdiction to reconsider decisions previously rendered to a circumscribed category of cases. In O.J. Pipelines Ltd., [1984] OLRB Rep. Dec. 1737, Vice-Chair Satterfield reviewed much of that jurisprudence at paras. 13 and following as follows:
• • •
The principles which guide the Board in the exercise of its reconsideration powers are described in the following terms in its decision in K-Mart Canada Limited (Peterborough),[1981] OLRB Rep. Feb. 185:
To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (see, generally, International Nicket Company of Canada, 63 CLLC ¶16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Avenue Faculty Association, York University, 78 CLLC ¶14,132. (Ont. Div. Ct.).
The Detroit River decision referred to in the quotation from K-Mart, supra, sets out the rationale behind the Board's perception that there is, as it said in K-Mart, supra, a need to bring some finality to its adjudicated decisions
While depending upon the circumstances of the case and the applicable principles of natural justice, the Board ought not to be as strict or as technical as a Court, it must nevertheless, in our view, recognize the necessity for and apply some principle of finality to its decision. It stands to reason that when a party has gone through the ordeal, expense and inconvenience of a hearing and obtained a decision in his favour, that he should not be deprived of the benefit of that decision except for good cause... If it were otherwise, the door would be open in any given case to ceaseless and never-ending hearings each serving as a prelude to the next ad infinitum and no one could ever safely rely on any decision as finally settling the rights of the parties."
The Board's decision in Journal Publishing Company of Ottawa Ltd., [1977] OLRB Rep. Sept. 549, at paragraph 6 cited two main reasons for the requirement of finality:
. . .The first reason is to protect the interests of those who have relied upon the Board's decision. The reliance interest is perhaps most important in those cases where the Board's decision has the effect of conferring or withdrawing bargaining rights. In such cases, where representation rights are in issue, the need for certainty and finality becomes obvious. A second reason sic, and perhaps no less important, is to protect the integrity of the Board's own processes. These processes must be protected from the parties who, under the guise of reconsideration, are merely seeking to repair, or reargue, a lost case.
- The passage quoted from the Board's K-Mart decision, supra, notes that, while reconsideration is usually restricted to allowing a party to adduce evidence or make representations which it did not have a change to raise previously, "... the Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened." Thus the usual grounds for reconsideration are not the only ground and in its decision in John Entwhistle Construction Ltd., [1979] OLRB Rep. Nov. 1096, the Board observed that it is important not to follow the usual grounds inflexibility:
"... These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decision, but also to allow parties who may be affected by the Board's decisions some degree of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly."
In the case before us no attempt is sought to adduce new evidence. Rather, the respondent reviews in a very generalized manner the extensive evidence upon which the Board based its decision, namely, the Labour Relations Officer's report containing the transcript of evidence of the three individuals whose testimony was agreed by the parties to be representative of the duties and responsibilities of the entire class of persons for whom bargaining rights were sought, and as well the evidence as to those duties and responsibilities given by a senior member of management. The applicant asserts that the characterization by the Board of that evidence as indicating an exercise of duties and responsibilities indicative of employee status is a mistaken one and that the opposite conclusion should have been made - that these indicate an exercise of managerial functions. No argument is put to the Board that was not or could not have been put to it at the time of the hearing in this matter. No case is pleaded that would support the assertion that the Board ignored its own policy as applied in other decisions on the question of managerial status, nor in light of the extensive review taken of the earlier jurisprudence could this be.
The particularized concern of the respondent with the finding of the Board in paragraph 24 misses the essential point made that any single function that might, viewed in a vacuum, point to managerial status, must be assessed within the setting of the totality of duties and responsibilities exercised within the enterprise under review before a finding of the exercise of managerial functions as contemplated by the statute might be made. Here, the determination of the majority of the Board was that the disputed functions viewed in that perspective against the totality of the evidence and in the context of this particular enterprise simply do not support a finding of the exercise of managerial functions.
Thus, we find the submissions of the respondent (echoed as well by those of the intervening group of employees) which are based upon disagreement with the findings of the Board and perceived deficiencies in its decisions not to be a sufficient basis upon which to successfully ground a request for reconsideration. We turn now to the alternative grounds upon which this request was made, that of Board process.
In Canadian Union of General Employees, [1975] OLRB Rep. April 320, the Board viewed the principle of finality in its decisions as undergirding two further values which should inform the workings of an administrative tribunal - such as the Board, those of dispatch and economy in the processing of matters with which it is seized (p.325). That there was a failure to further and fulfill those values in the instant case cannot be denied. Accepting that the delay of 14 months from close of proceedings to issuance of decision was an inordinate one, the question remains what, if any, effect should dilatory conduct on the part of the Board have upon exercise of the power to reconsider its decision. The respondent would have it that as celerity of process is axiomatic where the conferral of bargaining rights is at issue, its absence gives rise to a reasonable expectation on the part of those opposed that such rights will not be conferred by Board determination. Even if one were to accept the logic that delay in the grant of a certificate portends denial of entitlement to its issuance, the Board fails to comprehend why such delay should ground an application for reconsideration where such expectations were not realized in the decision ultimately handed down. Perhaps if there could be shown prejudice to the party adverse in interest occasioned by delay at the hands of the Board, the matter would be different. But such is not pleaded nor shown here and, indeed, it is difficult to envisage in the case of a fresh application for certification at an unorganized work place how delay in the issuance of a certificate could be prejudicial to the employer respondent with respect to which bargaining rights are sought.
In circumstances somewhat analogous to those here present, it has been argued that an arbitral award issued by an arbitrator outside of the time limit stipulated by the governing agreement or statutory enactment is a nullity, the delay in its issuance having deprived the arbitrator of jurisdiction. That theory was scotched by the Supreme Court of Canada in Air-Care Ltd. v. United Steelworkers of America et al., 1974 CanLII 200 (SCC), 49 D.L.R. (3d) 467 (S.C.C.). There, contrary to the terms of the governing collective agreement which called for the issuance of a decision within 30-calendar days from the end of hearings, a board of arbitration failed to issue its decision for almost 12 months from the close of hearings, and six months from the date of final written submissions. Speaking for the full Court, Mr. Justice Dickson stated at p. 471: "The right of a party should not be lost or in any way prejudiced as the result of dilatory conduct on the part of a board over which it has little or no control." See, as well, the decision of the Divisional Court in Re Metropolitan Toronto Board of Police Commissioners and Metropolitan Toronto Police Association (Unit B) et al., 1973 CanLII 677 (ON HCJDC), 37 D.L.R. (3d) 487. Here, although loss of jurisdiction is not pleaded, it is surely the applicant rather than the respondent whose rights could be said to have been prejudiced as a result of delay in the issuance of the Board decision. Reconsideration on the grounds sought could only compound that prejudice.
It is to be recalled that as the Board stated in Journal Publishing Company of Ottawa Ltd., supra, it is particularly where representation rights are at issue that the need for certainty and finality in Board decisions becomes obvious. For there, the initial decision of the Board conferring bargaining rights grounds the entire collective bargaining relationship which is to flow out of it. Thus, reliance on the vitality of the original decision is particularly great and to be disturbed only in the most unusual of circumstances. Such circumstances are not here present. Accordingly, the Board rejects the argument that delay occasioned by its own dilatory conduct suffices to ground exercise of its reconsideration power.
For all of the foregoing reasons this request for reconsideration by the Board of its decision of June 30, 1987 is dismissed.